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Somerset County Council (17 017 749)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 07 Oct 2019

The Ombudsman's final decision:

Summary: Ms G complains about the Council’s handling of her child’s special education needs and provision. Ms G says her child, H, has been out of school since October 2018 because of this. There appears no fault in the Council’s decision not to reimburse Ms G for tuition costs she incurred while H was out of school. The delay in finalising H’s Education Health and Care Plan did not cause significant injustice to H or Ms G. The Council has agreed to apologise and make a payment to remedy the fault in its handling of Ms G’s application for school transport.

The complaint

  1. Ms G complains about the way the Council has dealt with her daughter, H’s transfer to a new school and the delayed revision of her Education Health and Care Plan (EHC Plan). Ms G says the Council should be funding the tuition H has had to receive since she has been out of school from October 2018. Ms G feels the Council should reimburse the costs she has incurred so far so that H can receive tuition while out of school. Ms G also complains about the Council’s withdrawal of the travel escort H needs to get to school. She says there have been delays in finalising her H’s EHC Plans which have impacted on the amount of support she has received. Ms G also says in the latest EHC Plans, the Council fails to take account of the latest reports from experts like the Occupational Therapist, Educational Psychologist and colleagues from Children’s Social Care, which all suggest H requires a bespoke package to meet her educational needs.

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What I have investigated

  1. I have investigated the Council’s action following H’s non-attendance at school, its handling of the school transport application and the delay in finalising H’s EHC Plan.
  2. I have set out at the end of this decision the reasons for not investigating part of Ms G’s complaint.

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The Ombudsman’s role and powers

  1. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  2. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’)
  3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have spoken to Ms G and considered the information she has provided.
  2. I have considered the information the Council has provided in response to my enquiries, which includes information I asked the Council to obtain from the school.
  3. I have written to Ms G and the Council with my draft decision and considered their comments.

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What I found

  1. A child with special educational needs (SEN) may have an Education Health and Care Plan (EHC Plan). The EHC Plan sets out the child’s needs and what arrangements should be made to meet them. The Ombudsman cannot change a Plan; only SEND can do that.
  2. The Council is responsible for making sure that all the arrangements specified in the Plan are put in place. The Ombudsman cannot look at complaints about what is in the Plan but can look at other matters, such as where support set out in a Plan has not been provided or where there have been delays in the process.

Provision of education

  1. Councils have a legal duty to ensure that a good standard of education is available in their areas to school age children.
  2. Section 19 of the Education Act 1996 (as amended) says councils are responsible for the provision of suitable education for children of compulsory school age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them.
  3. Statutory guidance ‘Alternative Provision’ says councils should ensure children are placed as quickly as possible.
  4. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says:
    • councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more
    • councils should work closely with medical professionals and the child’s family and have regard to any medical advice given as to how much education will be appropriate for a child
    • if schools make arrangements to deliver suitable education councils would not be expected to become involved in such arrangements unless it had reason to think the education being provided to the child was not suitable, or was not full-time or for the number of hours the child could benefit from without adversely affecting their health.
  5. Parents are responsible for ensuring their school age children receive efficient full-time education either by regular attendance at school or otherwise (for example education at home). (Education Act 1997, section 7)
  6. Councils must make reasonable enquiries, when notified by a school that a child has stopped attending, to satisfy itself the child is receiving suitable education. (Statutory Guidance ‘Children Missing Education’)
  7. Councils and schools can use various legal powers if a child is missing school to improve the child’s attendance.

What happened

H’s attendance at School A

  1. Ms G’s daughter H has complex learning difficulties including autistic spectrum condition (ASC) and oppositional defiant disorder (ODD). H suffers from separation anxiety when she is away from Ms G and has developmental trauma, which means she can refuse to attend school. H has an Education, Health and Care Plan (EHC Plan) which sets out the support she needs at school. H receives tuition and attends Equine Assisted Qualifications (EAQ) in addition to attending school.
  2. In September 2018, H moved to School A, which is outside the Council’s area. H attended transition visits at School A in the summer term before starting there full-time to help her settle. The Council issued Ms G amendment notices in January and May 2018 to reassess H’s EHC Plan but did not finalise this until the end of November 2018. Both the existing EHC Plan and the latest EHC Plan finalised in November include one-to-one support from a teaching assistant during lessons and breaktimes.
  3. School A recruited a teaching assistant in June 2018 in preparation for H starting in September 2018. This teaching assistant was unable to take up the post and the School had to replace them. The School appointed the replacement teaching assistant, who took up the post in October 2018. An existing staff member at School A, who H knew, provided one-to-one support between September and October 2018.
  4. In October 2018, Ms G took H out of School A. An incident occurred between H and another child during breaktime, which led to the sibling of the other child bullying H. This incident and the lack of full-time one-to-one support meant Ms G felt she could no longer keep sending H to school. Ms G was also concerned as the Council had withdrawn the travel escort it had provided for travel to H’s previous school when she started at School A.
  5. School A offered Ms G a reduced timetable for H in areas she enjoyed to encourage H back to school as it believed the lack of travel escort was the main problem causing the issues with H’s attendance. This proved unsuccessful as H continued to refuse to attend school. In December 2018, the School proposed a revised timetable to start in January 2019. The revised timetable was for H to attend school three days a week and receive full-time support from a teaching assistant. The timetable suggested moving H to another class or keeping her in the same class as before but with two teachers. The timetable also included supporting H through physiotherapy, space to allow movement while working, emotional support, calming sessions and leisure activities out of and after school.
  6. Ms G started paying for additional tuition hours outside school for H since she stopped attending School A in October 2018. Ms G approached the Council to ask it to fund the tuition as alternative provision out of school. The Council wrote to Ms G and explained it could not fund the tuition hours while H was not attending School A. It said it was already provided funding for education to School A where a school place remained available for H. The Council explained that if the School had agreed for H to receive tuition as an alternative to attending school, it would need to use the funding it received from the Council for H’s education to pay for this.
  7. In May 2018, School A agreed to reimburse Ms G’s costs from the beginning of April 2019 for four additional hours of tuition from the funding it received from the Council for H’s education provision.
  8. The Council finalised H’s current EHC Plan in June 2019. This says H will receive a programme of support, including six hours tuition per week and time at farm school until she is able to integrate back into a school setting. The EHC Plan names a different school to School A for H to attend when she is considered able to go back. The EHC Plan does not say how long H will receive tuition and farm school sessions as an alternative to a mainstream school setting but does imply it will continue for a long as needed and will be kept under regular review.

School transport

  1. The Council provided school transport for H to attend her previous school which was a 20 to 30 minute car journey from H’s home. Ms G says school transport included a passenger assistant or escort to help keep H calm during the journey to and from school. The contract the Council had arranged for transport came to an end when H left her previous school. Ms G was unaware at this point that she needed to apply for school transport again if she still needed help with getting H to School A.
  2. Ms G made an application for H’s school transport to School A when she started there in September 2018. The Council’s copy of Ms G’s application did not include details that H required a passenger assistant for the journey to and from school. Ms G did however upload a copy of the draft EHC Plan the Council had sent to her in May 2018, which included reference to how the transport arrangements H had to get to her previous school greatly helped with her attendance. The previous EHC Plan noted H could behave dangerously in the car and had been known to hit out if she knew the car was taking her to school.
  3. The Council considered Ms G’s application and confirmed in August that it would continue to provide transport for H to get to School A. The Council told Ms G it would contact her separately to confirm the H travel arrangements.
  4. The Council says it considered the circumstances for providing transport for H to get to School A. It noted the journey time to School A was considerably shorter – it took approximately 10 minutes to get from H’s home to School A by car. The Council believed H required a passenger assistant to support her if a male driver was taking her to school. The Council decided it would provide a female driver for H’s travel to and from School A, so it could dispense with the need to also provide a female passenger assistant. The Council completed a risk assessment and recorded that H had not hit out at any passenger assistants in the last 18 months while travelling to her previous school and had only agreed to travel to school if she liked the passenger assistant sent that day. The Council’s risk assessment noted H did not require a passenger assistant for a specific medical need.
  5. Ms G complained about the Council’s decision to withdraw the passenger assistant. She said H did not need a female passenger assistant if she was taken to school by a male driver, she needed the assistant to help keep her calm on the way to school, particularly on days when she was reluctant to attend. In October, Ms G provided a letter from H’s doctor which supported the need for H to have a passenger assistant to encourage her to attend school. The Council reviewed its decision and agreed to provide a passenger assistant for H’s travel to School A from 15 November 2018. By this time, Ms G had taken H out of school and she was not attending regularly.

Was there fault causing injustice?

  1. Councils should complete assessments and reviews of EHC Plans within 20 weeks with an emphasis on completion as soon as practical. Ms G says the Council left it too late to complete a proper review of H’s EHC Plan and it did not plan for her transfer to School A. The Council issued amendment notices to Ms G to review the EHC Plan in January and May 2018. It appears the Council was making attempts to finalise the EHC Plan, but Ms G was not in agreement with the changes the Council was proposing. The Council eventually finalised the EHC Plan naming School A in November 2018. This process took considerably longer than 20 weeks. While the delay is fault, the provision set out in H’s existing EHC Plan remained active and School A was able to use this to ensure appropriate support was in place when H started attending at the beginning of September 2018. As a result, I cannot say H or Ms G suffered significant injustice as a result of the delay.
  2. Ms G says she felt she had no choice but to pay for additional tuition hours when H refused to go to School A in October 2018. The Council says it had limited information about H’s attendance at School A because the school is located out of its area. The Council says it was however satisfied there was evidence of suitable alternative provision being offered by School A, but that Ms G was not willing to engage with this. Ms G’s refusal to try the alternative provision School A had offered for H is not evidence of fault by the Council. The Council did not take action for non-attendance while School A sought to work with Ms G to get H back into school. I accept the Council’s view that it had already funded for provision to be made available to H at School A and it could not duplicate that funding by reimbursing the costs Ms G had incurred for tuition when she did not send H to School A. School A was unable to end the provision it had put in place for H immediately in case she returned to school. This meant the funding the Council had provided to School A continued to be used on the support provision until April 2019.
  3. The Council approved Ms G’s application for school transport to get H to School A, so it did not necessarily need to provide Ms G with details of her appeal rights. It is not however clear from the evidence I have seen that the Council sought further information from Ms G before deciding to withdraw the passenger assistant. The Council’s letter to Ms G on 21 August 2018 confirmed transport would be provided to H and stated the Council would be in contact with Ms G to discuss arrangements for this. It gave no indication that the level of support H would receive travelling to school had been altered. This was fault as it did not allow Ms G the time, before H started at School A, to provide information and evidence to the Council about why H still needed a passenger assistant on the shorter journey to School A. This caused avoidable frustration and distress for Ms G and H.

Agreed action

  1. To remedy the fault set out in paragraph 31, the Council has agreed to:
  • apologise to Ms G; and,
  • make a payment of £150 in recognition of the avoidable distress caused to her and her daughter.
  1. The Council has agreed to complete the above action within one month of the date of my final decision.

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Final decision

  1. I have completed my investigation and found fault with the Council’s handling. The Council’s delay in finalising H’s EHC Plan was fault which did not cause significant injustice to H or Ms G. The Council acted with fault when it dealt with Ms G’s school transport application and it has agreed to remedy the injustice to Ms G for this.

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Parts of the complaint I have not investigated

  1. I have not investigated Ms G’s complaints about the content of H’s EHC Plan and discussed this with Ms G. This is because the Ombudsman cannot look at complaints about what is in a Plan or change its contents, only the SEND Tribunal can do this.

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Investigator's decision on behalf of the Ombudsman

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